On October 20, 1966, after trial without a jury, defendant was convicted of the crimes of robbery (Pen. Code, § 211) and kidnaping for the purpose of robbery (Pen. Code, § 209). He has appealed from the resulting judgment.
Four men robbed a residence in Studio City on June 4, 1966. The following day, Alfred Baum and Richard Bader were arrested for possession of narcotics. At the time of their arrest, they were driving in defendant's car, which contained stolen property from the Studio City robbery. Both men made full statements admitting the commission of the robbery, and both implicated defendant.
On June 6, Officer Gastaldo interviewed Baum and Bader, and they repeated their inculpations of Hill.
The arrested man said that his name was Miller, that he did not live in the apartment, and that he was just "sitting around" waiting for Hill. He stated that he did not know of any stolen property in the apartment, and that he had seen no guns, although an automatic pistol and a clip of ammunition were in plain view. The man produced identification, but Miller's credentials did not "prove anything" to Gastaldo. Miller was subsequently booked, held for a day and a half, and released.
The officers searched the premises and found weapons, stolen property, and two pages of a diary in defendant's handwriting. The diary told a damning story of the robbery of June 4.
Thus, in People v. Campos, 184 Cal.App.2d 489 [7 Cal.Rptr. 513], the police were searching for a Willie Campos who resided on Paramount Boulevard and was sought on federal charges. They had a picture of defendant, a different Willie Campos, who also resided on Paramount Boulevard. When collared by the police, defendant consented to a search which disclosed narcotics. Both arrest and search were valid. Similarly, in People v. Miller, 193 Cal.App.2d 838 [14 Cal.Rptr. 704], the police sought a Cecil Miller who was wanted on three traffic warrants. They found defendant, a different Cecil Miller, and a search incident to his arrest disclosed narcotics. The arrest and search were lawful.
In People v. Gorg, 45 Cal.2d 776, 783 [291 P.2d 469], the defendant rented a room in a private residence. In defendant's absence, the homeowner allowed the police to search the room where they found narcotics. The court held that where "officers have acted in good faith with the consent and at the request of a home owner in conducting a search, evidence so obtained cannot be excluded merely because the officers may have made a reasonable mistake as to the extent of the owner's authority." Although sometimes criticized,
These cases contain the two unusual elements found here: An absent defendant and license to search provided by a person without actual authority to do so. They recognize that any search or arrest constitutes a substantial invasion of privacy. They conclude that such invasions are not more obnoxious when predicated upon a mistake. It therefore appears that neither Hill's absence nor Miller's lack of control vitiate the search where the police validly arrested Miller in the reasonable and good faith belief that he was Hill and that he controlled the premises.
In summary, we hold that the reasonable but mistaken beliefs of the police did not render their conduct unreasonable in a constitutional sense.
Traynor, C.J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
Appellant's petition for a rehearing was denied December 11, 1968.
A search incident to an arrest on mistaken identity is valid (People v. Miller, supra, 193 Cal.App.2d 838; People v. Campos, supra, 184 Cal.App.2d 489), as is a search incident to an arrest for a felony which has not in fact been committed (cf. Witkin, Cal. Evidence (2d ed. 1966) § 113, pp. 112-113).
The critics rely on Stoner v. California, 376 U.S. 483, 488 [11 L.Ed.2d 856, 860, 84 S.Ct. 889], where the court said: "Nor is there any substance to the claim that the search was reasonable because the police, relying upon the night clerk's expressions of consent, had a reasonable basis for the belief that the clerk had authority to consent to the search [of defendant's hotel room]. Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of `apparent authority.'" (See Chapman v. United States, 365 U.S. 610 [5 L.Ed.2d 828, 81 S.Ct. 776] (landlord).) California cases are to the same effect. (See People v. Roberts, 47 Cal.2d 374, 377 [303 P.2d 721] (apartment manager); People v. Burke, 208 Cal.App.2d 149, 160 [24 Cal.Rptr. 912] (hotel manager).)
And it is often ignored that the court also said: "[T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner's room." (376 U.S. at p. 489 [11 L.Ed.2d at p. 860].) The sine qua non of the operation of the rule of Gorg is an honest belief based on reasonable grounds.
Neither is Beck v. Ohio, 379 U.S. 89, 97 [13 L.Ed.2d 142, 148, 85 S.Ct. 223], germane. The court remarked there that "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,' only in the discretion of the police." In Beck, the police acted without probable cause and only debateably in good faith in arresting and searching the petitioner. No one disputes that good faith is not a substitute for probable cause.